39
PROCTOR | October 2016
Confidences –
a question of
succession
by Stafford Shepherd
Rule 9.1 of the Australian
Solicitors Conduct Rules 2012
(ASCR) provides that we must not
disclose any information which
is confidential to a client and
acquired by us during the client’s
engagement to any person except
as permitted in rules 9.1.1, 9.1.2
and 9.2 ASCR.
The duty of confidence continues after the
client engagement ends.1 If the client dies,
the duty to maintain confidences endures.
The policy reasons for this are articulated by
Chief Justice Rehnquist, who delivered the
majority judgment in Swidler & Berlin and
James Hamilton v United States:2
“...there are weighty reasons that counsel
in favour of posthumous application. Knowing
that communication will remain confidential
even after the death encourages the client
to communicate fully and frankly with
counsel. While the fear of disclosure, and
the consequent withholding of information
from counsel is limited to posthumous
disclosure in a criminal context, it seems
unreasonable to assume that it vanishes
altogether. Clients may be concerned about
reputation, civil liability, or possible harm to
friends or family. Posthumous disclosure of
such communications may be as feared
as disclosure during the client’s lifetime.”
Client legal privilege is seen as a subset
of client confidential communications.3 It is
not as broad as the duty of confidentiality,
nor does it rest in our conduct rules.
The privilege is seen as a fundamental
right. The privileged communications are
protected from compulsory disclosure
unless ousted by statute or waived.
Similar to our duty of confidence, the client
legal privilege is not ousted by reason of
the client’s death. The confidences and
the privilege vest in the client’s personal
representatives.4 As Lord Lindley states in
Bullivant v Attorney-General for Victoria:5
“The mere fact that a testator is dead does
not destroy the privilege. The privilege is
founded upon the views which are taken
in this country of public policy, and that
privilege has to be weighed, and unless the
people concerned in the case of an ordinary
controversy like this waive it, the privilege
is not gone – it remains.”
It is for the personal representative or
successor in title to waive any confidences
or privilege. If a personal representative
or successor in title to an interest of the
deceased client in specific property chose
to waive the confidence or privilege then it is
our duty to disclose to that person all relevant
information, including notes of the deceased
client’s instructions.6
Hodson LJ in Schneider v Leigh7 emphasised
that client legal privilege is the privilege of the
client. His Honour qualified this statement
by stating that “the privilege enures for the
benefit of successors in the title to the party
to an action, at any rate, where the relevant
interest subsists”.
8
What of a client’s bankruptcy? How does
bankruptcy affect the assertion of client legal
privilege? In Worrell and Anor v Woods,9
Finn J noted that:
• at common law a person is entitled to
preserve from compulsory disclosure the
confidentiality of statements and other
materials that have been made or brought
into existence for the sole purpose of
seeking or being furnished with legal
advice or for the sole purpose of preparing
for existing or contemplated litigation
• while the entitlement can be overridden
by statute, it is presumed that Parliament
would only do so clearly by express words
or by necessary implication.10
Stafford Shepherd is the director of the Queensland
Law Society Ethics Centre.
The prevailing view is that a trustee appointed
to administer the affairs of a bankrupt client
is not entitled to assert that client’s legal
professional privilege unless permitted by
statute.11 The privilege is a personal right
of the client and remains with the client.12
In R v Dunwoody,
13 McMurdo P held:
“Whether legal professional privilege
remains with the bankrupt is perhaps
not beyond doubt. Legal professional
privilege is essentially a concept personal
to the bankrupt, [footnote omitted] it is not
property. It can only be removed by statute
where there are the clearest words or by
necessary implication.”
14
Where a corporate client enters into
liquidation, the liquidator is the successor
in title to the privilege and may waive the
privilege.
15 The reason for this approach
as compared to the position of a bankrupt
client is that the agent which controls the
client legal privilege is the company’s board
of directors, when the company is solvent.
Such power passes to the liquidator on
insolvency because its function is more
analogous to the agency that has ceased.
16
Notes
1 Gartside v Sheffield, Young & Ellis [1983] NZLR 37,
49 (Richardson J) (‘Gartside’).
2 (1998) 524 US 399, 407.
3 Gino Dal Pont, Lawyers’ Professional Responsibility
(Thomson Reuters, 5th ed, 2013), 337.
4 Gartside, 49 (Richardson J).
5 [1901] AC 196, 206.
6 Gartside, 44 (Cooke J).
7 [1955] 2 QB 195.
8 Ibid, 203.
9 (1999) 90 FCR 264.
10 Baker v Campbell (1983) 153 CLR 52.
11 Dal Pont, above n 3, 388.
12 Re Steele; Ex parte Official Trustee in Bankruptcy v
Clayton Utz (a firm) (1994) 49 ALR 716, 725.
13 [2004] 149 A Crim R 259.
14 Ibid 267-268.
15 Re Compass Airlines Pty Ltd (1992) 35 FCR 447, 455.
16 See the reasoning in Commodity Futures Trading
Commission v Weintraub (1985) 471 US 343, 356-7.
Ethics